In the U.S. District Court in Salt Lake City in the case of SCO v. Novell, Linux-power Novell Inc. argued that Judge Dale Kimball should allow Novell to convert its motion for dismissal of The SCO Group Inc.s to one for summary judgment.
The two companies are arguing over Novells claims that it, and not SCO, owns Unixs copyrights.
Novell has maintained since 2003 that when it sold Unix in 1995 to the Santa Cruz Operation, the ancestor to todays SCO, that the deal did not include the IP (intellectual property) rights.
Novells case relies largely on a set of minutes from a 1995 Novell board of directors meeting, which clearly states that Novell was to retain its Unix copyrights when it sold the operating system to the Santa Cruz Operation.
SCOs $5 billion lawsuit against IBM depends in part on showing that IBM misused its licensed Unix code by contributing it to Linux.
Novell simply winning this case might not put an end to the SCO-IBM trials, though.
Douglas E. Phillips, an IP attorney in the Washington, D.C., office of the international law firm Covington & Burling, commented when the two companies first butted heads on this issue.
"First, even a favorable ruling for Novell on its current motion would not determine who owns the Unix copyrights. SCOs litigation against IBM and users would not be affected," Phillips said.
Thats because "SCOs case against Novell is for slander of title. Its based on Novell having told people that Novell, not SCO, owns the Unix copyrights. To win, SCO needs to show not only that Novells claims of ownership were false, but also that Novell made those claims with malice—in other words, knowing that they were false or with reckless disregard for whether they were true," Phillips said.
Indeed, in the hearing, Novells lawyers pushed on the "malice" issue than on the copyright issue per se, according to courtroom attendees reporting on the legal news site Groklaw.
"Because SCO needs to establish both elements; Novell can win by negating either one," Phillips said.
SCOs PR director Blake Stowell would only say, "The SCO Group gave arguments against Novells second motion to dismiss our slander of title claim against them, and we look forward to receiving the courts ruling on that motion."
Eben Moglen, the legal counsel for the FSF (Free Software Foundation) and a law professor at Columbia University, said that while he hadnt read the transcript of the hearing, he had little doubt that Novell would prevail.
"SCO hasnt done a good job yet in making their case against IBM. I dont see how it would be any different against Novell," said Moglen.
The judge indicated that he would make a quick decision on the motion.